31st December, 2002
Ministry of Law & Justice  


LAW COMMISSION'S RECOMMENDATIONS ON LAW RELATING TO ARREST


The Law Commission of India, in its 177th Report on Law Relating to Arrest, has suggested far reaching changes in the criminal laws to maintain a balance between the liberty of the citizen and the societal interest in maintenance of peace, law and order. It has also suggested measures for making police accountable for their omission and commission.

The Law Commission has recommended amendment of Section 41 of the Code of Criminal Procedure, 1973, which deals with the arrest of persons and provides the situation when any police officer may arrest any person without an order or warrant from a magistrate. According to the Commission, this Section is vague and ambiguous. The Commission has also recommended deletion of Sub-Section (2) of Section 42 of the Code of Criminal Procedure as in the opinion of the Commission it is unnecessary and superfluous. The Commission has recommended insertion of a new provision in the form of Section 60A which provides that arrest has to be made strictly in accordance with the provisions of the court. A large number of arrests are made in bailable offences, most of which are bound to be non-cognizable offences. The changes suggested by the Commission in the Code of Criminal Procedure are necessary to regulate the power of arrest by the police, as at present, unguided powers are exercised by them. In this connection, the Supreme Court in D.K. Basu case in 1997 had issued certain directions and safeguards to be observed in respect of arrest. The Law Commission has, therefore recommended that the directions of the apex court be incorporated in Chapter V of the Code of Criminal Procedure along with consequences for not complying with such provisions.

The Commission has also recommended accountability of police and enforcement agencies. Accordingly, the Commission has recommended insertion of new Sections 41A to 41D to include procedure of arrest and duties of police officers making right and right of arrested person to have advocate during interrogation. The violation of these provisions contained in Sections 41A to 41D should constitute an offence within the meaning of Section 166 of the Indian Penal Code.

The Law Commission has suggested that health, safety and well being of the arrested should be the responsibility of the detaining authority. Accordingly, the Commission has recommended a substitution of Section 54 by insertion of new Section 55A to provide that it should be the duty of the person having the custody of an accused to take reasonable steps for the health and safety of the accused. Section 54 of the Code of Criminal Procedure deals with examination of arrested persons by medical practioner.

The Law Commission has recommended that a large number of offences in Section 320 of the Code of Criminal Procedure be deleted from its Sub-section 2 and placed in sub-section 1of Section 320 so that these offences may be compounded without permission of the court. Section 320 deals with compounding of offences. The Commission has also recommended that offence under Section 498A of Indian Penal Code relating to cruelty by the husband or relative of the husband be also made impoundable with the permission of the court.

The Law Commission has also addressed the law relating to bail. In this connection, it has recommended that in offences punishable upto seven years imprisonment, with or without fine, the normal rule should be bail and denial thereof an exception. In other serious offence, the matter has to be left to the discretion of the court having regard to the totality of the circumstances and keeping in mind necessity to maintain a balance between the interests of the society as a whole in proper maintenance of law and order and the constitutional, legal and human rights of the accused. It has also recommended that in case of offences punishable with seven years or less, the police officer or the court should not insist on sureties unless those were special reasons for imposing that condition. The release should be on personal bond as a general rule.

The Law Commission has reiterated its earlier 154th Report and commended the reasoning therein for establishment of a separate investigating agency and separation of investigating and protecting agency from the police staff engaged in the maintenance of law and order.

The Law Commissionís recommendations have taken into account the Supreme Court judgements in Maneka Gandhi case (1978), Joginder Kumar Vs State of U.P. (1994) and D.K. Basu Vs. State of West Bengal (1997).